Explanation of Revision of the Regulations Governing the Confidentiality of Pretrial Services Information

The revised pretrial services confidentiality regulations are issued under the authority conferred by 18 U.S.C. § 3153 (c)(2) (as amended by the Pretrial Services Act of 1982, Pub. L. No. 97-267, 96 Stat. 1136) and 28 U.S.C. § 604(f). This amendment to the Pretrial Services Confidentiality Regulations makes both editorial and substantive changes to the regulations.

Effective date: July 1, 1992.

• History of regulations:
The Pretrial Services Confidentiality Regulations were first promulgated pursuant to the grant of authority to the Director of the Administrative Office of the United States Courts in the Pretrial Services Act of 1982 (Pub. L. No. 97-267, § 3, 96 Stat. 1136 (Sept. 27, 1982)) (18 U.S.C. S 3153 (c)(2)). The regulations were amended in 1985 to conform with the Bail Reform Act of 1984 (Pub. L. No. 98-473, title II, chapt. I, 98 Stat. 1976 (Oct. 12, 1984)).
• Purpose of Amendments:
Since the enactment of the Bail Reform Act of 1984 and the subsequent amendment of the Confidentiality Regulations, there has been a growing concern among pretrial services officers about the adequacy of the regulations. While there have been few disagreements regarding the policies underlying the regulations, the application of the regulations has become more difficult due to the sentencing guidelines promulgated under the authority of the Sentencing Reform Act of 1984, the increased workload of pretrial services, a perceived increase in aggressiveness on the part of United States Attorneys' offices in attempting to obtain release of pretrial services information, increased use of drug testing, and other developments.

Accordingly, this amendment is designed to clarify those provisions of the regulations that have proved to be ambiguous, to condense and eliminate redundancies in the regulations, to improve the consistency of the regulations with the authorizing statute, and to make the few substantive changes deemed necessary. Any adjustments that might be helpful to resolve difficulties associated with sentencing under the provisions of the Sentencing Reform Act were considered to be beyond the scope of the authority to promulgate confidentiality regulations and, accordingly, were not attempted here.

• Explanation of Changes:
A statement of the statutory objective of the confidentiality of pretrial services information has been added in section I(C). Where there is an ambiguity in the regulations or where the judicial officer must decide to disclose information for "good cause" pursuant to section 5(J), consideration of the objective for protecting the confidentiality of the information may prove helpful.

The provision permitting a judicial determination to permit disclosure contrary to other provisions of the regulations has been amended at sections 3(A) and 5(J). These provisions now permit the judicial officer to make such a determination. The former section l(b) required approval of a judge of the district court. The provision has also added a standard for such determinations: disclosure may be permitted for "good cause" after the judicial officer considers any harm that may be caused by a disclosure, whether disclosure would violate a promise of confidentiality, and the objectives of confidentiality. The former provision included no standard for this determination.

The regulations do not deal with the issue of the use of pretrial services information for impeachment purposes. Section 3 simply restates the statutory limitation of 18 U.S.C. § 3153 (c)(3). It is the opinion of the Administrative Office that the use of pretrial services information for impeachment purposes is not permitted by statute and is inconsistent with the objectives of confidentiality of pretrial services information. Nonetheless, the Director recognizes that two courts of appeals have determined that the provisions of 18 U.S.C. § 3153 (c) do not foreclose use of pretrial services information for impeachment. United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) (Stevens involved the disclosure of a statement of a third party, not a defendant), and United States v. Wilson, 930 F.2d 616 (8th Cir. 1991). These cases did not discuss the confidentiality regulations nor any effect the regulations may have had on the determination of the issues before those courts. While it is still the view of the Administrative Office that pretrial services information should not be used for impeachment purposes, the Director determined that it would be inappropriate to promulgate a regulation directly contrary with the case law in two circuits.

The amendment at section 4(C) is designed to clarify that the testimony of pretrial services officers is generally not authorized. While officers may informally respond to inquiries of the judicial officer, regular testimony by pretrial services officers may result in unnecessary inclusion of pretrial services information on the public record and could adversely affect pretrial services officers' ability to collect information by too closely identifying the officer with the parties by whom the officer is called to testify.

The amendment at section 5(C) recognizes that defendants may be released under the provisions of 18 U.S.C. § 3142 (c)(B)(i) to the custody of the family of the defendant. In such circumstances, the family should have access to information that could affect the fulfillment of its responsibilities to the court.

Section 5(D) attempts to clarify that all pretrial services information relevant to sentencing is available to the probation officer. The probation officer is not foreclosed from reporting to the court pretrial services information that becomes available after the presentence report has been prepared.

Sections 5(E) and (F) recite the statutory requirement of 18 U.S.C. S 3154 (5) that pretrial services information which involves a violation of the conditions of release, the arrest of a defendant, or a risk of harm presented by the defendant be reported to the court and the United States attorney’s office.

The regulations are amended at section 5(G) to permit the pretrial services officer to provide pretrial services information to law enforcement and correctional personnel who may be required to arrest the defendant or who provide care or custody for the defendant. Such authority is necessary to assist in the apprehension of pretrial defendants who may have escaped and to provide protection to such law enforcement and correctional personnel and to the public. The provision is also intended to permit disclosure of information to correctional personnel that is necessary for the care or treatment of the defendant.

The regulations are amended at section 5(I) to expand the circumstances under which the chief pretrial services officer or chief probation officer who supervises pretrial services may authorize release of information at the request of the defendant. The regulations previously provided only for disclosure to obtain public benefits. This restriction was unrealistic and unnecessary to promote the objectives of confidentiality. The amendment provides that authorization of release is to be given only if release does not violate a promise of confidentiality, does not jeopardize another person and does not compromise the objectives of confidentiality.

Finally, the regulations were amended by adding section 5(J) to provide for the release of certain types of information that are generally not considered confidential. Information such as the current residence and employment of a defendant may normally be disclosed without fear of jeopardizing pretrial services officers' access to information. Nonetheless, such disclosure must be approved by the chief probation or pretrial services officer after analyzing the risk to sources of information, as well as the risk of harm to any person.